Tenn. Comp. R. & Regs. 0400-40-03-.06 - ANTIDEGRADATION STATEMENT

(1) General

(a) It is the purpose of Tennessee's standards to fully protect existing uses of all surface waters as established under the Act. Existing uses are those actually attained in the waterbody on or after November 28, 1975. Where the quality of Tennessee waters is better than the level necessary to support propagation of fish, shellfish, and wildlife, or recreation in and on the water, that quality will be maintained and protected unless the Department finds, after intergovernmental coordination and public participation, that lowering water quality is necessary to accommodate important economic or social development in the area in which the waters are located as established herein. In such waters, there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources in that stream segment and sources or activities exempted from permit requirements under the Water Quality Control Act in that stream segment should utilize all cost-effective and reasonable best management practices to prevent degradation of waters. Where new or increased temperature alterations are proposed, a successful demonstration as determined by the Department under Section 316(a) of the Clean Water Act, 33 U.S.C. § 1326, shall be considered to be in compliance with this rule.

(b) To apply this antidegradation statement to permits for new or increased discharges, new or increased water withdrawals, or new or expanded habitat alterations, the Department shall first determine if the application is complete. Absent extraordinary circumstances, the Department shall notify the applicant that an application is complete or of any deficiencies within 30 days of receipt of the application. When the Department determines the application is complete, it shall provide notice to the applicant in writing.

1. A complete application will include all of the information requested on the forms provided by the Department. For activities other than new domestic wastewater discharges, a complete application will include the applicant's basis for concluding that the proposed activity:

(i) Will not cause measurable degradation (for withdrawals or discharges);

(ii) Will only cause de minimis degradation;

(iii) Will cause no significant degradation (for habitat alterations); or

(iv) Will cause more than de minimis degradation.

2. If the proposed activity will cause degradation of any available parameter above a de minimis level, or if it is a new discharge of domestic wastewater, a complete application will:

(i) Analyze a range of potentially practicable alternatives to prevent or lessen the degradation associated with the proposed activity;

(ii) Demonstrate that the proposed degradation is necessary to accommodate important social or economic development in the area in which the waters are located; and

(iii) Demonstrate that the proposed degradation will maintain water quality sufficient to protect existing uses in the receiving waters.

3. An alternative to degradation is practicable if it is technologically possible, able to be put into practice, and economically viable. Potentially practicable alternatives include, but are not limited to, the following:

(i) Alternatives for discharges include connection to an existing collection system, land application, water reuse, water recycling, or other treatment alternatives to prevent or reduce the level of degradation. For small domestic discharges, connection to an existing system or land application will be considered preferable.

(ii) For water withdrawals, alternatives include water conservation, water reuse or recycling, off-stream impoundments, water harvesting during high flow conditions, regionalization, withdrawing water from a larger waterbody, use of groundwater, connection to another water supply with available capacity, and pricing structures that encourage a reduction in consumption.

(iii) For activities that cause habitat alterations, alternatives that avoid or minimize degradation should be explored and explained by the applicant. These avoidance or minimization activities could include maintaining or enhancing buffer zones, bridging a stream rather than culverting it, altering the footprint of a project instead of relocating a stream, or using a culvert without a bottom, instead of one that is fully concreted.

4. To demonstrate that greater than de minimis degradation is necessary to accommodate important social or economic development in the area in which the waters are located, the applicant shall provide a written justification to include, as applicable, a description of the project, the number of jobs anticipated to be created (including salaries/benefits, duration, and type), tax revenue to be generated, impact of the proposed degradation to development potential in the area, other social/cultural impacts, and any other justification. Applicants shall submit alternative or additional information regarding economic or social necessity as directed by the Department. The justification should demonstrate an overall benefit to the local community, not just a benefit to the applicant.

(c) The Department shall propose a permit action by notifying the applicant in writing and by notifying the public and the state and federal agencies with jurisdiction over fish, wildlife, shellfish, plant and wildlife resources, parks, and historic preservation by posting a notice on the Department's web site and sending email to persons who have asked to be notified of permit actions. In the case of new or expanded habitat alterations or new or increased water withdrawals this public notice shall be a part of the public notice under paragraph (4) of Rule 0400-40-07-.04 and shall contain the information required by, and be governed by the procedures of, that paragraph of the rules. For a new or increased discharge, the public notice shall summarize the information given by the applicant pursuant to subparagraph (b) of this paragraph and shall contain the information required by, and be governed by the procedures of, Rule 0400-40-05-.06. Public notices should also include the Department's preliminary determination of the level of degradation and the antidegradation category of the affected waters.

(d) After completion of the public notice and comment period, the Department shall make a final determination of the level of degradation that would occur as a result of the proposed activity. Not all activities cause an addition of pollutants, diminish flows, or impact habitat.

1. In the case of discharges, if the Department determines that no measurable degradation will occur as a result of the activity, no further review under this rule is required regardless of the antidegradation classification of the receiving stream, unless the activity:

(i) Is a new domestic wastewater discharge;

(ii) Introduces a parameter identified as bioaccumulative;

(iii) Introduces a parameter with a criterion below the current method detection level for that substance; or

(iv) Is proposed to occur in an ONRW.

2. In the case of water withdrawals requiring permits from waters other than ONRWs, if the Department determines that no measurable degradation will occur, no further review under this rule is required regardless of the antidegradation classification of the receiving stream.

3. In the case of habitat alterations, if the Department determines that no more than de minimis degradation will occur, no further review under the rule is required regardless of the antidegradation classification of the receiving stream.

(e) If the steps described in subparagraphs (b), (c) and (d) of this paragraph do not conclude the review under this rule, the Department shall make a final determination whether the waters impacted by the activity are ones with available parameters, unavailable parameters, Exceptional Tennessee Waters, or ONRWs, or if they are in more than one category. For example, a stream segment may be unavailable for one parameter and be available for others and Exceptional Tennessee Waters may also be unavailable for certain parameters. If an activity is proposed in a waterbody that is in more than one category, it must meet all of the applicable requirements.

(2) Waters with unavailable parameters

Unavailable parameters exist where water quality is at, or fails to meet, the levels specified in water quality criteria in Rule 0400-40-03-.03, even if caused by natural conditions. In the case of a criterion that is a single response variable or is derived from measurement of multiple response variables, the unavailable parameters shall be the agents causing water quality to be at or failing to meet the levels specified in criteria. For example, if the biological integrity criterion (derived from multiple response variables) is violated, the unavailable parameters shall be the pollutants causing the violation, not the response variables.

(a) In waters with unavailable parameters, new or increased discharges that would cause measurable degradation of the parameter that is unavailable shall not be authorized. Nor will discharges be authorized in such waters if they cause additional loadings of unavailable parameters that are bioaccumulative or that have criteria below current method detection levels.

(b) In waters with unavailable parameters, no new or increased water withdrawals that will cause additional measurable degradation of the unavailable parameter shall be authorized.

(c) Where one or more of the parameters comprising the habitat criterion are unavailable, habitat alterations that cause significant degradation shall not be authorized.

(3) Waters with available parameters

Available parameters exist where water quality is better than the levels specified in water quality criteria in Rule 0400-40-03-.03.

(a) In waters with available parameters, new or increased discharges that would cause degradation above the level of de minimis for any available parameter for any criterion, or a new domestic wastewater discharge, will only be authorized if the applicant has demonstrated to the Department that there are no practicable alternatives to prevent or lessen degradation associated with the proposed activity and the degradation is necessary to accommodate important economic or social development in the area and the degradation will not violate the water quality criteria for uses existing in the receiving waters. If one or more practicable alternatives is identified, the Department shall only find that a lowering is necessary if those alternative(s) are selected for implementation.

(b) In waters with available parameters, new or increased water withdrawals that would cause degradation above the level of de minimis will only be authorized if the applicant has demonstrated to the Department that there are no practicable alternatives to prevent or lessen degradation associated with the proposed activity and the degradation is necessary to accommodate important economic or social development in the area and will not violate the water quality criteria for uses existing in the receiving waters. If one or more practicable alternatives is identified, the Department shall only find that a lowering is necessary if those alternative(s) are selected for implementation.

(c) In waters with available parameters, an activity that would cause degradation of habitat above the level of de minimis will only be authorized if the applicant has demonstrated to the Department that there are no practicable alternatives to prevent or lessen degradation associated with the proposed activity and the degradation is necessary to accommodate important economic or social development in the area and will not violate the water quality criteria for uses existing in the receiving waters. If one or more practicable alternatives is identified, the Department shall only find that a lowering is necessary if those alternative(s) are selected for implementation.

(4) Exceptional Tennessee Waters

(a) Exceptional Tennessee Waters are surface waters other than wet weather conveyances that are in any one of the following categories:

1. Waters within state or national parks, wildlife refuges, forests, wilderness areas, or natural areas;

2. State scenic rivers or federal Wild and Scenic Rivers;

3. Federally-designated critical habitat or other waters with documented non-experimental populations of State or federally-listed threatened or endangered aquatic or semi-aquatic plants or animals;

4. Waters within areas designated as Lands Unsuitable for Mining pursuant to the federal Surface Mining Control and Reclamation Act where such designation is based in whole or in part on impacts to water resource values;

5. Waters with naturally reproducing trout;

6. Waters with exceptional biological diversity as evidenced by a score of 40 or 42 on the Tennessee Macroinvertebrate Index (or a score of 28 or 30 in subecoregion 73a) using protocols found in the Department's 2017 Quality System Standard Operating Procedure for Macroinvertebrate Stream Surveys, provided that the sample is considered representative of overall stream conditions; or

7. Other waters with outstanding ecological, or recreational value as determined by the Department. When application of this provision is a result of a request for a permit, such preliminary determination is to be made within 30 days of receipt of a complete permit application.

(b) The Department will maintain a list of waterbodies that have been reviewed and are known to have one or more of the above characteristics on its website and will make paper copies of that list available upon request.

(c) Authorization of Activities in Exceptional Tennessee Waters

1. In waters identified as Exceptional Tennessee Waters new or increased discharges that would cause degradation of any available parameter above the level of de minimis and new domestic wastewater discharges will only be authorized if the applicant has demonstrated to the Department that there are no practicable alternatives to prevent or lessen degradation associated with the proposed activity, the degradation is necessary to accommodate important economic or social development in the area, and the discharge will not violate the water quality criteria for uses existing in the receiving waters. If one or more practicable alternatives is identified, the Department shall only find that a lowering is necessary if those alternative(s) are selected for implementation. At the time of permit renewal, previously authorized discharges, including upstream discharges, which presently degrade Exceptional Tennessee Waters above a de minimis level, will be subject to a review of updated analysis of alternatives information provided by the applicant, but not to a determination of economic/social necessity. Public participation for these existing discharges will be provided in conjunction with permitting activities.

2. In waters identified as Exceptional Tennessee Waters, new or increased water withdrawals that would cause degradation of any available parameter above the level of de minimis will only be authorized if the applicant has demonstrated to the Department that there are no practicable alternatives to prevent or lessen degradation associated with the proposed activity and the degradation is necessary to accommodate important economic or social development in the area and will not violate the water quality criteria for uses existing in the receiving waters. If one or more practicable alternatives is identified, the Department shall only find that a lowering is necessary if those alternative(s) are selected for implementation.

3. In waters identified as Exceptional Tennessee Waters, an activity that would cause degradation of habitat above the level of de minimis will only be authorized if the applicant has demonstrated to the Department that there are no practicable alternatives to prevent or lessen degradation associated with the proposed activity, and the degradation is necessary to accommodate important economic or social development in the area and will not violate the water quality criteria for uses existing in the receiving waters. If one or more practicable alternatives is identified, the Department shall only find that a lowering is necessary if those alternative(s) are selected for implementation.

(d) Determination of Economic/Social Necessity - The Department's determination that degradation above a de minimis level of Exceptional Tennessee Waters resulting from a proposed new or increased discharge, new or expanded habitat alteration, or new or increased water withdrawal is, or is not, necessary to accommodate important economic or social development in the area shall be subject to review by the Board of Water Quality, Oil and Gas under the following procedures.

1. If the Department determines after completion of the public notice and comment procedures established in subparagraph (1)(c) of this rule that an activity that would cause degradation above a de minimis level of Exceptional Tennessee Waters is necessary to accommodate important economic or social development in the area, it shall give notice to the applicant, the public, and federal and State agencies with jurisdiction over fish, wildlife, shellfish, plant and wildlife resources, parks, and advisory councils for historic preservation. This notice shall be given by being posted on the Department's website and by sending email to persons who have asked to be notified of permit actions. Within 30 days after the date of the notification, any affected intergovernmental coordination agency or affected third person may petition the Board for a declaratory order under T.C.A. § 4-5-223, and the Board shall convene a contested case. After the Board has convened a contested case in response to a declaratory order petition under this part, the Department shall within five business days thereafter transmit the petition to the Administrative Procedures Division of the Secretary of State so the contested case may be docketed and an administrative law judge may be assigned to the case. If a declaratory order petition is timely filed, the Department shall not proceed further in processing the permit application until the petition has been resolved before the Board. In the contested case, the petitioner shall have the burden of proof, and the Department's determination shall carry no presumption of correctness before the Board. The applicant is a necessary party to the declaratory order contested case, and if the applicant does not participate in the contested case, the Board shall render a decision that degradation is not necessary to accommodate important economic or social development in the area. If no intergovernmental coordination agency or third person petitions for a declaratory order within 30 days of the notification date, or if one is filed after the 30 days expires, then the Department shall proceed with processing the permit application.

2. A declaratory order contested case conducted under this subparagraph shall be subject to the following procedures. Mediation may occur if all the parties agree. Any proposed agreed order resulting from mediation shall be subject to approval by the Board. In order to provide for an expedited proceeding, the contested case is subject to the following time limitations. The time periods specified in this part shall commence on the day after the contested case has been docketed by the Administrative Procedures Division of the Secretary of State and an administrative law judge has been assigned to the case. Any alteration of the time periods set out in this part shall be granted only upon agreement of all the parties, or when there have been unforeseen developments that would cause substantial prejudice to a party, or when the parties have agreed to mediation. Within 20 days, the parties shall confer to try and develop a proposed agreed scheduling order. If the parties are unable to agree, then each party shall submit a proposed scheduling order, and the administrative law judge, after a hearing, shall enter a scheduling order. All discovery shall be completed no later than 20 days prior to the date the hearing before the Board is to begin. Within 120 days, the hearing before the Board shall begin, but the Board on its own initiative may exceed 120 days to complete the hearing and render its final decision. In order for degradation of Exceptional Tennessee Waters to proceed pursuant to these rules, the Board must make a finding approving degradation by a majority vote of the members of the Board present and voting.

3. If the Department determines that degradation is not necessary to accommodate important economic or social development in the area, it will notify the applicant, the federal and state agencies with jurisdiction over fish, wildlife, shellfish, plant and wildlife resources, parks, and advisory councils for historic preservation, and third persons who have asked to be notified of permit actions. The Department also will issue a tentative decision to deny the permit because degradation is not necessary. In accordance with paragraph (4) of this rule, the Department will provide the public with notice of and an opportunity to comment on its tentative denial decision. If no public hearing is requested within the 30 day public comment period, and if the Department does not alter its tentative decision to deny, the Department shall notify the applicant of its final decision to deny the permit because degradation is not necessary. Within 30 days after receiving notice of the final decision to deny the permit, the applicant may seek review of the decision that the degradation is not necessary to accommodate important economic or social development in the area in a contested case before the Board in accordance with T.C.A. § 69-3-105(i). Within five business days after the Department receives an applicant's written request for a contested case hearing before the Board, the Department shall transmit the written request to the Administrative Procedures Division of the Secretary of State so the contested case may be docketed and an administrative law judge may be assigned to the case. In the contested case, the applicant shall have the burden of proof, and the Department's determination shall carry no presumption of correctness before the Board. The federal and state intergovernmental coordination agencies, and third persons who requested notification of the Department's degradation determination will be notified by the Department of the applicant's permit appeal. The intergovernmental coordination agencies and third persons may seek to intervene in the contested case in accordance with T.C.A. § 4-5-310.

(5) Outstanding National Resource Waters

(a) The following streams or portions of streams are designated as ONRW:

WATERBODY	PORTION DESIGNATED AS ONRW
1. Little River	Portion within Great Smoky Mountains National Park.
2. Abrams Creek	Portion within Great Smoky Mountains National Park.
3. West Prong Little Pigeon River	Portion within Great Smoky Mountains National Park upstream of Gatlinburg
4. Little Pigeon River	From the headwaters within Great Smoky Mountains National Park downstream to the confluence of Mill Branch.
5. Big South Fork Cumberland River	Portion within Big South Fork National River and Recreation Area.
6. Reelfoot Lake	Tennessee portion of the lake and its associated wetlands.

7. The portion of the Obed River that is designated as a federal wild and scenic river as of June 22, 1999, is designated as ONRW, provided however, that if the current search for a regional water supply by the Cumberland Plateau Regional Water Authority results in a determination that it is necessary to utilize the Obed River as its source of drinking water, for that purpose the Obed shall be designated as an Exceptional Tennessee Water and any permit issued for that project, whether state, federal, or otherwise, shall be considered under the requirements for Exceptional Tennessee Waters.

(b) The Department may recommend to the Board of Water Quality, Oil and Gas that certain waterbodies be designated as ONRWs. These shall be high quality waters which constitute an outstanding national resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance. Designation of ONRWs must be made by the Board of Water Quality, Oil and Gas and will be accomplished in accordance with T.C.A. § 69-3-105(a)(1) of the Tennessee Water Quality Control Act and through the appropriate rulemaking process.

1. In surface waters designated by the Board of Water Quality, Oil and Gas as ONRWs, no new discharges, expansions of existing discharges, water withdrawals or mixing zones will be permitted unless such activity will not result in either measurable degradation or discernible effect. At the time of permit renewal, previously authorized discharges, including upstream discharges and withdrawals, which presently degrade an ONRW, will be subject to an analysis of alternatives. Public participation for these existing discharges will be provided in conjunction with permitting activities.

2. In waters designated by the Board of Water Quality, Oil and Gas as ONRWs, no new or expanded habitat alteration that would cause degradation of habitat above the level of de minimis or degrade water chemistry for more than a short duration will be authorized.

Notes

Tenn. Comp. R. & Regs. 0400-40-03-.06

Original rule filed September 17, 2013; effective December 16, 2013. Rule originally numbered 1200-04-03. Amendments filed June 13, 2019; effective 9/11/2019.

Authority: T.C.A. §§ 4-5-201, et seq., and 69-3-101, et seq.